Monday, April 19, 2010

Should a fired/not-hired minister be able to sue a church for discrimination?

Please answer this poll, preferably at length, in the comments.

A. No, because who would be a good minister is entirely the church's decision and the courts and/or the government should have no say in how churches are run. Freedom of religion means that churches have a certain amount of autonomy under the constitution and if the courts/government have a say in the selection of church leaders, then the autonomy can be unduly influenced.

B. In a limited sense. If a church has a normally illegal distinction as part of its doctrine/tradition, then that part should be exempted, but nothing else should. (E.g. A Catholic church can refuse to hire Alice as a priest because Catholic doctrine/tradition requires that priests be male. But they cannot refuse to hire Father Bob because he is old* since Catholic doctrine doesn't really have anything requiring priests to be young.)

C. Yes, the cause of anti-discrimination is a very important one and demanding that churches follow the same hiring rules as any other organization only makes sense and doesn't burden religion significantly, besides, giving church organizations freedom to discriminate is not part of freedom of religion.

D. One of the above, but for another reason.

I should emphasize that this is not a law quiz. The law does currently take one of the views above and I lean toward another one, but some very bright people have argued the third view. Anyway, I'm just trying to find out what some layfolk and ministers think about this issue.

CCtoday's criminal justice *headdesk* of the day is pretty mild, but still...

EDIT: Currently the law does recognize a ministerial exemption from all discrimination laws, and even the Equal Pay Act, so the courts take position A. A lot of churches use that to get away with some nasty things, so I am trying to figure out a just way to argue for position B. Position C is that of some legal scholars I have read.

*They can, of course, refuse to hire him for any number of other reasons.

15 comments:

It seems to me the only possible answer is A, No. There needs to be a firewall between the churches and the state, for the sake of both. And the thought of the state interfering in the relationship between a congregation and its religious leaders is mind-boggling...

Now, I think there is a more difficult area when a religious organization is offering services that are not within the sphere of religion proper, such as a hospital or maybe a soup kitchen. That's when we need the services of good lawyers and a judicial system to work the details out...

Like James, I think that the RELIGIOUS leaders of a religious congregation cannot do the work they are called to nor the congregation receive the leadership of its leaders if the government intervenes between them - except, perhaps, for enforcement of formally agreed upon pay and benefits.

I do believe that congregations should always be held to the same exact standards of non-discrimination as any other employer for all positions other than religious leadership positions.

I tend to favor A. It's not just a matter of principle that government should not interfere in church matters (and vice versa); I don't think government is qualified to determine who would make a good spiritual leader/teacher.

That being said, I do see a few areas where government could indeed intervene:

1) Government has a compelling interest in making sure that workplaces are safe, both in the sense of the physical location being sound, and the personnel can be trusted not to be abusive.... See More

2) There is also an interest in making sure that employees are fairly compensated; the question here, of course, is what that means.

3) Once a minister is hired/called, and the contract/covenant is signed, both parties are expected to live up to that deal. When there is a dispute as to whether one or both parties violated the agreement, a case could be made for a lawsuit to have the courts decide the issue (although IMHO it would be better to try to settle such matters through arbitration).

Employment discrimination is difficult, though not impossible, to prove.

But honestly, in many of the cases I've seen the churches have no problem saying that they fired the youth pastor because she was gay (not illegal nationally yet, but illegal many places) or because she got pregnant when she wasn't married. Or that they pay female employees less for the same work because men are supposed to be the heads of their households.

And naturally the Catholics will cheerfully admit that they won't hire female priests. (Examples other than sex discrimination do exist, of course, but churches are usually more subtle about them.)

I think "B" is perhaps the best answer here. While I agree with the premise that there must be a clear separation between the State and the churches, the nature of the discriminatory action does matter. It's one thing to fire or to decline to hire ministers if something about them conflicts directly with that church's belief system. Like ordaining an openly gay minister in a church that deems homosexuality to be a mortal sin.

If the discriminatory reason has no support in tradition or teachings of that church, and the minister falls within one of the protected categories of persons for whom these protections have been established (for example, a person known to be a poligamist can't sue because this is not a protected category), then the minister should be able to sue the church.

I think mandatory affirmation of Statements of Faith for ministers are reasonable, with the performance expectation that their teaching and activities and lives will be in line with what they have signed off on. An unrepentant out gay minister with an active relationship life could then be fired, not for "being gay," but for failing to perform their job duties satisfactorily. The same for unmarried pregnant women--but probably not for older people. Pay differentials could probably be justified through reference to complementarian gender role beliefs.

I tend to think that denominations and congregations should be governed by civil employment law except where they have "exempted" themselves through a prior statement of faith. "But it's not what we believe!" is lame as a post-hoc justification, and putting courts in the position of making determinations about the "real" doctrines of a religious group is insane. If religious groups are going to be employers, they need to learn to comply with relevant laws. If they can do it with W-4s and overtime regs and such, they can stay current with what groups are protected and get their workarounds figured out.

My ministerial journey has moved me from A to B. I profile outside a familiar identity assumption: that women are "feelers" and men are "thinkers." I have spent almost twenty years watching congregations affirm men -- often young ones -- for the very same styles that in me were called "too directive" and "too intellectual." As a historian, I have seen women struggle against this for over one hundred years -- and wind up, more often than not -- pushed into the content-heavy, structure-oriented role of unpaid or barely paid director of religious education.

I have come to believe that we are only going to have significant numbers of women in major pulpit positions if we shift candidate selection to a completely identity-blind process, Packet A, Packet B, Packet C -- with no life journey information provided, including in the sermons. This is what symphony orchestras developed in order to break through their inherited prejudices, even concealing auditioners behind a screen, and putting them on carpeted surfaces, so differences in weight and shoe form cannot be heard as they come and go.

I agree with B, insofar as religions that claim God discriminates can replicate His prejudices in their structure. But we were formed specifically to end that definition of God, and it's time for our structures to catch up with what we say we believe.

CC, I slightly misread the question. Should we be able to sue for this pattern of discrimination? I would exhaust in-house options first, as described in my post. Should we be able to sue? Given what our own history tells us about the pattern of discrimination, and our theology teaches about equally embodying God, yes.

"And the thought of the state interfering in the relationship between a congregation and its religious leaders is mind-boggling..."

Really James?

What about criminal law?

Your *mind-boggling* statement, taken at face value, would imply that the state should never prosecute clergy for crimes. I'm sure that U*U rapist Rev. Mack Mitchell would be thrilled to hear that. . .

@DairyStateDad: Churches do have the right to express political opinions (e.g., endorse a candidate). They don't cease to exist if so; they just lose their tax-exempt status. That's what keeps a political organization from masquerading as a religious organization. (They do it anyway, but at least they have to pay taxes.)

@John: C is not the law of the land because you can't have religious freedom under such a law. What, should I be able to be the minister of a Baptist church because the church, like the real estate office down the street, can't be allowed to discriminate on the basis of religion? (The UUs would be taken over within six months by Baptists demanding the right to be our ministers.) By the same token, of course they have the right to say I am not a proper leader for a Baptist church because I'm a woman and because I'm bi. The reason is the same: I contradict their doctrine.

@Robin, none of this stuff prevents the government from prosecuting a minister for criminal conduct. Heaven forbid. We're talking about proposed relationships between state and church that would go the other way: "protect" ministers from discriminatory behavior by religious organizations. (Of course, the state should be able to, is able to, and does also protect ministers from criminal behavior by churches.)